Rajadevan A/L Vamadevan v 1. ) Mohd Nizam Bin Saidon (KD-A72-6-09/2024)

MOHD NIZAM BIN SAIDON (NRIC No.: 690216-86-5013)

NURUL HAILA HANIM BINTI HARIF (NRIC No.: 690216-86-5013) ...DEFENDANT GROUNDS OF JUDGMENT INTRODUCTION [1] This judgment pertains to the Notice of Appeal (refer to S/N 7vpA9PlZb06Sk5ywzUTfTw Enclosure 26) filed by the Defendant's counsel. The appeal challenges the decision rendered by the Langkawi Sessions Court on 27 February 2025, which dismissed the Defendant's application in Enclosure 17 on the grounds that the counsels in the firm representing the Defendants were not licensed advocate and solicitor at the time of the hearing. [2] The Defendant previously filed Enclosure 10, seeking to set aside the default judgment. On 5 February 2025, this Court dismissed the Defendant's application. Subsequently, the Defendant filed a notice of appeal (Enclosure 20). It is evident that Enclosure 20 must first be resolved in the High Court. [3] The current application (Enclosure 26), as outlined in Enclosure 17, is essentially the same as the previous one. [4] The Defendant initially submitted Enclosure 10 to set aside the default judgment. On 5 February 2025, the Court dimissed this application. Following this, the Defendant filed a notice of appeal (Enclosure 20), which must be addressed by the High Court before proceeding further. S/N 7vpA9PlZb06Sk5ywzUTfTw [5] Currently, the Defendant has filed Enclosure 26, which mirrors the previous application. Given the pending appeal on the same matter, the Court finds it procedurally improper to entertain Enclosure 26 at this juncture. [6] The dismissal was predicated on the fact that the Defendant's original counsel’s firm on record which is Messrs. Aidah Ghani & Associates were unlicensed by the Bar Council at the material time. The Defendant now contends that the counsel who appeared on behalf of the original counsel during the Mention on Behalf (MOB) which is Harmuni Binti Othman was duly licensed, and thus, the application should be reconsidered. The Defendant contends that the counsel who appeared on behalf of the original advocate possessed the necessary license to practice law in Malaysia. [7] Upon thorough examination of the facts, applicable laws, and precedents, the Court has decided to dismiss the application. No order as to costs is made, resulting in each party bearing its own legal expenses. S/N 7vpA9PlZb06Sk5ywzUTfTw BACKGROUND OF THE CASE [8] I will now provide a concise overview of the facts relevant to this case. The Defendant's original counsel, who lacked a valid practicing certificate from the Bar Council, appointed another licensed advocate to appear on their behalf for a hearing application in this Court. Upon recognizing that the principal counsel was unlicensed, this Court dismissed the Defendant's application and awarded costs to the Plaintiff. The Defendant has since appealed, asserting that the MOB counsel possessed the requisite license to practice. [9] The Defendant has since appealed, arguing that the counsel who appeared on behalf of the original counsel during the Mention On Behalf (MOB) was duly licensed, and therefore, the application should be reconsidered. The Legal Profession Act 1976 (Act 166) (LPA) governs the practice of law in Malaysia, stipulating that only qualified individuals admitted to the Malaysian Bar are entitled to represent parties in legal proceedings. Section 36 of the LPA explicitly prohibits any person from acting as an advocate and solicitor unless they are duly admitted and registered under the LPA. This provision ensures that only those with the requisite S/N 7vpA9PlZb06Sk5ywzUTfTw qualifications and adherence to professional standards are permitted to offer legal representation. [10] In the present case, the individual who appeared on behalf of the Defendant lacked the necessary credentials as mandated by the LPA. This contravention of statutory requirements undermines the integrity of legal proceedings and the administration of justice. The courts have consistently held that representation by unqualified persons is a serious irregularity. For instance, in Darshan Singh Khaira v. Majlis Peguam Malaysia [2021] 10 CLJ 497 the Federal Court emphasized the necessity of proper legal representation in accordance with the LPA. [11] Furthermore, the Federal Court in Mirza Mohamed Tariq Beg bin Mirza HH Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671. underscored that adherence to statutory provisions governing legal practice is paramount to uphold the rule of law and public confidence in the legal system. Non-compliance with these provisions renders any proceedings tainted and susceptible to nullification. [12] In light of the unequivocal legislative directives and S/N 7vpA9PlZb06Sk5ywzUTfTw authoritative judicial interpretations, the Langkawi Sessions Court's decision to dismiss the Defendant's case due to unauthorized representation was both appropriate and necessary. Permitting such representation would establish a perilous precedent, potentially undermining the integrity of legal practice standards and compromising the quality of justice administered. [13] Therefore, this judgment reaffirms that strict compliance with the LPA is essential, and any deviation therefrom cannot be countenanced. ISSUES TO BE DETERMINED [14] The primary issues for determination are: a. Whether an unlicensed advocate and solicitor can lawfully represent a client in court proceedings through a licensed proxy. b. Whether the Court's dismissal of the Defendant's application, based on the original counsel's lack of licensure, was justified. S/N 7vpA9PlZb06Sk5ywzUTfTw c. Whether this case was scheduled for hearing under the A-Track category or a Case Management proceeding as alleged by the Defendant’s council in Enclosure 20. d. Whether this case which is an Interlocutory Application scheduled for hearing under the A-Track category can be appeal. [15] As for the first issue, (a) whether an unlicensed advocate and solicitor can lawfully represent a client in court proceedings through a licensed proxy. a. Pursuant to the LPA, specifically Section 36, it is unequivocally stipulated that only individuals whose names are inscribed on the Roll and who are in possession of a valid Practising Certificate are authorized to engage in practice as advocates and solicitors within the jurisdiction of Malaysia. It is clear that section 37 further reinforces this mandate by S/N 7vpA9PlZb06Sk5ywzUTfTw expressly prohibiting any unauthorized person from acting as an advocate and solicitor or from holding themselves out as qualified to do so. b. The statutory framework does not accommodate any provisions that would permit an unlicensed advocate to represent a client indirectly through the agency of a licensed proxy. Such an arrangement would constitute a contravention of the statutory requirements, thereby rendering any legal representation by an unlicensed advocate, even if facilitated through a licensed intermediary, as unlawful and void ab initio. [16] As for the second issue, (b) whether the Court's dismissal of the Defendant's application, based on the original counsel's lack of licensure, was justified. a. In light of the stringent provisions encapsulated within the LPA, the judiciary's decision to dismiss the Defendant's application on the grounds of the original counsel's absence of a valid Practising Certificate is S/N 7vpA9PlZb06Sk5ywzUTfTw both justified and legally sound. Representation by an unlicensed advocate constitutes a grave procedural irregularity that fundamentally undermines the integrity and legitimacy of judicial proceedings. b. The courts have consistently underscored the imperative for legal practitioners to adhere scrupulously to statutory mandates to preserve the sanctity of the legal process. Consequently, such a dismissal serves to uphold the rule of law, ensuring that only duly qualified and licensed individuals are permitted to engage in the practice of law. [17] As for the third issue, (c) whether this case was scheduled for hearing under the A-Track category or a Case Management proceeding as alleged by the Defendant’s council in Enclosure 20. a. Upon meticulous examination of the Court's Case Management System records (hereinafter referred to as ‘the CMS records’), it is evident that this matter was scheduled for hearing under the A-Track category, S/N 7vpA9PlZb06Sk5ywzUTfTw specifically designated for Interlocutory Applications corresponding to codes 71, 72, 72M, and 73. This classification is distinct from a case management proceeding, contrary to the assertions made by the Defendant's counsel in Enclosure 20. b. The A-Track classification within the CMS records is utilized for the management of specific interlocutory applications, as delineated by their respective codes. Codes 71, 72, 72M, and 73 pertain to particular categories of civil proceedings and summonses, each necessitating adherence to procedural protocols distinct from general case management processes. The accurate categorization of such applications ensures the appropriate judicial handling and scheduling, thereby facilitating the efficient administration of justice. c. In light of the clear differentiation between interlocutory applications under the A-Track system and standard case management proceedings, the Defendant's counsel's characterization of the scheduled hearing as S/N 7vpA9PlZb06Sk5ywzUTfTw a mere case management is unfounded. The CMS records unequivocally reflect the nature of the proceeding as an interlocutory application, warranting the procedural considerations attendant to such matters. [18] As for the forth issue, (d) whether this case which is an Interlocutory Application scheduled for hearing under the A-Track category can be appeal. a. The question of whether an interlocutory application, particularly one assigned to the A-Track category, is amenable to appeal is governed by the provisions of the Courts of Judicature Act 1964 (CJA). b. Recent amendments to Sections 28 and 68 of the CJA have instituted specific limitations on the appealability of certain interlocutory orders. Notably, orders pertaining to the dismissal of applications for summary judgment, the striking out of pleadings, and the setting aside of default judgments are among those classified as non-appealable. S/N 7vpA9PlZb06Sk5ywzUTfTw c. However, it is imperative to recognize that not all interlocutory orders are precluded from appellate review; the determinative factor hinges upon the nature of the order and its finality concerning the substantive rights of the parties THE COURT’S ANALYSIS [19] In the context of the LPA, sections 36 and 37 are pivotal in regulating the practice of law within the jurisdiction. [20] It is clear, section 36 of the LPA explicitly prohibits any individual from practicing as an advocate and solicitor or performing any related legal functions unless they are duly registered on the Roll and possess a valid practicing certificate. This provision ensures that only qualified and authorized persons engage in legal practice, thereby safeguarding the integrity of the profession and protecting public interest. [21] Section 37 of the LPA reinforces this mandate by criminalizing the actions of unauthorized individuals who either act S/N 7vpA9PlZb06Sk5ywzUTfTw as advocates and solicitors or present themselves as qualified to do so. The penalties for such offenses, upon conviction, include a fine not exceeding RM2,500.00 or imprisonment for a term not exceeding six months, or both. This stringent measure serves as a deterrent against the unauthorized practice of law, maintaining the profession's standards and ensuring that legal services are rendered by competent and accredited practitioners. [22] The Malaysian judiciary has consistently upheld the sanctity of these provisions. In the case of Bhavanash Sharma Gurchan Singh Sharma v. Jagmohan Singh Sandhu [2022] 1 LNS 2047, the High Court at para 13 deliberated on issues pertaining to unauthorized legal practice, emphasizing the necessity for strict adherence to the statutory requirements outlined in the LPA. The court's decision underscored the imperative that all legal practitioners must be properly licensed, and any deviation from this requirement undermines the legal system's credibility. [23] Furthermore, the Legal Profession (Amendment) Act 2013 introduced Section 37A, which clarifies that the prohibitions in Sections 36 and 37 of the LPA do not extend to arbitral proceedings. This amendment acknowledges the distinct nature of arbitration and S/N 7vpA9PlZb06Sk5ywzUTfTw permits parties to engage in arbitral processes without contravening the Act, provided such participation aligns with the established legal framework governing arbitration in Malaysia. [24] In summary, Sections 36 and 37 of the LPA serve as foundational pillars in regulating legal practice in Malaysia. They ensure that only individuals with the requisite qualifications and valid practicing certificates are authorized to offer legal services, thereby upholding the profession's integrity and protecting the public from unqualified practitioners. Judicial interpretations and legislative amendments continue to reinforce these provisions, adapting to the evolving legal landscape while maintaining the core principles of professional regulation. [25] The accused formally acknowledged the exhibits as accurate and authentic, thereby admitting them as true representations of the evidence in question without raising any objection. In determining whether an interlocutory application scheduled under the A-Track category is appealable depends on the nature of the application. If the application falls within the categories specified in the amended Sections 28 and 68 of the CJA, such as the dismissal of a summary judgment application or the dismissal of an application to strike out S/N 7vpA9PlZb06Sk5ywzUTfTw pleadings, it would not be subject to appeal. Conversely, interlocutory applications not encompassed by these specific provisions may still be appealable, subject to the general rules governing appeals. [26] It is crucial for legal practitioners to carefully assess the specific nature of an interlocutory application to determine its appealability in light of the current statutory framework and prevailing judicial interpretations. [27] Therefore, any appeal predicated on the mischaracterization of the proceeding's nature is without merit and stands dismissed. THE LAW [28] Section 36(1) of the LPA (Act 166), it is provided as follows: Advocate and solicitor to have name on the Roll before practice

(1) Subject to this section, no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorizing him to do the act; a person who is not so S/N 7vpA9PlZb06Sk5ywzUTfTw qualified is in this Act referred to as an “unauthorized person”. Courts Of Judicature Act 1964 Section 28: Civil appeals from the subordinate courts. [29] This section delineates the circumstances under which appeals from subordinate courts may be brought before the High Court. Notably, it specifies that no appeal shall lie to the High Court in civil matters where the amount in dispute or the value of the subject matter is RM10,000.00 or less, except on a question of law. Additionally, amendments have further restricted appeals in certain interlocutory decisions. Specifically, appeals are precluded in cases where a subordinate court has dismissed applications for summary judgment, dismissed applications to strike out any writ or pleading, or allowed applications to set aside a default judgment. Section 68: Non-appealable matters. [30] This section outlines the conditions under which appeals from the High Court can be made to the Court of Appeal. It stipulates that no appeal shall be brought to the Court of Appeal where the amount S/N 7vpA9PlZb06Sk5ywzUTfTw or value of the subject matter is less than RM250,000.00 except with the leave of the Court of Appeal. Furthermore, similar to Section 28, amendments have been instituted to limit appeals in specific interlocutory matters. Appeals are not permissible in instances where the High Court has dismissed applications for summary judgment, dismissed applications to strike out any writ or pleading, or allowed applications to set aside a default judgment. [31] These provisions aim to streamline the appellate process, reduce frivolous appeals, and ensure that only matters of significant legal or monetary importance are escalated to higher courts. THE COURT’S FINDING [32] Section 37(1) of the LPA explicitly prohibits any unauthorized person from acting as an advocate and solicitor or from commencing, carrying on, soliciting, or defending any action in any of the Courts in Malaysia. The term "unauthorized person" encompasses individuals who do not possess a valid practicing certificate issued by the Bar Council. S/N 7vpA9PlZb06Sk5ywzUTfTw [33] In the case of Majlis Peguam Malaysia v. Norsiah Ali [2020] 4 CLJ 149, the Court of Appeal addressed issues concerning professional misconduct under the LPA. The case involved an advocate and solicitor who had misappropriated client funds, leading to disciplinary action. The Disciplinary Board had ordered the respondent to be struck off the Roll, but the High Court substituted this with a suspension. The Court of Appeal reinstated the striking-off order, emphasizing the gravity of misappropriating client funds. While the case did underscore the necessity for advocates and solicitors to adhere to the LPA, it specifically focused on the misappropriation of client funds rather than the requirement to hold a valid practicing certificate. [34] Rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 stipulates that an advocate and solicitor shall not appear in any case where they have reason to believe they will be a witness on a material and disputed question of fact. This rule aims to prevent conflicts of interest and maintain the integrity of legal proceedings. [35] The Defendant argues that the presence of a licensed MOB counsel rectifies the original counsel's lack of licensure. However, this contention overlooks the fact that the original counsel, being S/N 7vpA9PlZb06Sk5ywzUTfTw unlicensed, was unauthorized to act as an advocate and solicitor in any capacity, including delegating representation. Allowing such a practice would effectively enable unlicensed individuals to circumvent the statutory requirements of the LPA, thereby undermining the regulatory framework governing legal practice in Malaysia. [36] The case of Darshan Singh Khaira v. Majlis Peguam Malaysia [2021] 10 CLJ 497 further reinforces this position. The Court held that even a single act of carrying out functions as an advocate and solicitor without proper authorization constitutes practicing law unlawfully. Thus, any action taken by an unlicensed individual, directly or indirectly, in a legal proceeding is invalid. CONCLUSION [37] The Court's decision to dismiss the Defendant's application stems from the fact that the Defendant's original counsel lacked a valid Practising Certificate, rendering any legal actions undertaken unauthorized and in direct violation of the Legal Profession Act 1976 (LPA). This Act stipulates that only individuals duly admitted and enrolled as advocates and solicitors, and holding a valid Practising Certificate, are authorized to practice law in Malaysia. Section 36 of S/N 7vpA9PlZb06Sk5ywzUTfTw the LPA explicitly prohibits any person from practicing as an advocate and solicitor unless their name is on the Roll and they possess a valid Practising Certificate. Allowing representation by unlicensed individuals would contravene statutory provisions, undermine the integrity of legal practice, and compromise the administration of justice. [38] The Malaysian Bar emphasizes the necessity for strict adherence to licensing requirements to uphold the rule of law and ensure the quality of legal representation. This stance is consistent with authoritative judicial interpretations that reinforce the importance of compliance with the LPA. The Malaysian Bar's Circular No 447/2024, issued on 30 December 2024, emphasizes the critical importance of holding a valid Sijil Annual and Practising Certificate (SAPC) for the year 2025. Members who fail to obtain their SAPC by 31 January 2025 will be classified as inactive and are prohibited from practicing law. [39] To address this, the Circular outlines that members must submit or regularize their SAPC 2025 applications by 31 January

Failure to do so requires submitting a "Resume Practice Request" through the Malaysian Bar website to regain access to the S/N 7vpA9PlZb06Sk5ywzUTfTw Member Online Portal. This process is essential for the Secretariat to process applications promptly and maintain the integrity of legal practice. [40] The subsequent appointment of a licensed advocate to appear on behalf of the unlicensed principal counsel does not rectify the initial breach. The integrity of legal proceedings necessitates that all representatives are duly authorized at all stages of representation. Therefore, the dismissal of the Defendant's application was warranted [41] This judgment addresses the Defendant's Notice of Appeal (Enclosure 26), challenging the Langkawi Sessions Court's decision dated 27 February 2025. The lower court dismissed the Defendant's application in Enclosure 17 without costs, citing that the counsel representing the Defendant lacked a valid advocate and solicitor license at the time of the hearing. [42] Previously, the Defendant filed Enclosure 10 to set aside the default judgment. On 5 February 2025, this Court dismissed that application. Subsequently, the Defendant lodged a Notice of Appeal S/N 7vpA9PlZb06Sk5ywzUTfTw (Enclosure 20), which is currently pending before the High Court. [43] The present application (Enclosure 26) essentially mirrors the earlier application (Enclosure 10). Given that the appeal in Enclosure 20 remains unresolved in the High Court, this Court deems it procedurally inappropriate to consider Enclosure 26 at this juncture. Dated on this day, 11 March 2025 -sgd- (ALLAN SUMAN PILLAI) Sessions Court Judge Langkawi Kedah Date of Decision : 27 February 2025 On behalf of the Plaintiff : Fathin Delila Binti Hamdan On behalf of the Defendant : Aida Binti Ghane S/N 7vpA9PlZb06Sk5ywzUTfTw